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September 13, 1991


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


The Federal Bureau of Investigation ("FBI") moves pursuant to Rules 59 and 62 of the Federal Rules of Civil Procedure for reconsideration, clarification and a stay of this Court's prior Opinion and Order dated April 22, 1991 (familiarity with which is presumed). The FBI had moved for partial summary judgment as to the sufficiency of its production of documents dated 1963-70 which contained references to plaintiff Herman Ferguson ("Ferguson"), which the FBI had produced in heavily redacted form based on its interpretation of the statutory exemptions contained in the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (as amended). After reviewing in camera an unredacted sample consisting of 89 documents, the Court denied the FBI's motion for partial summary judgment, partially granted the plaintiff's motion for reprocessing as specified in that Opinion, denied plaintiff's motions for another Vaughn index and discovery, ordered the FBI to produce certain documents in camera to the Court as specified in that Opinion and Order, and ordered it to release to plaintiff Herman Ferguson certain information from the 89 documents reviewed in camera by the Court. Ferguson v. FBI, 762 F. Supp. 1082 (S.D.N.Y. 1991).

In response to the Court's order, the FBI submits a second in camera declaration of Special Agent Joseph P. Smith and a public declaration of Special Agent Smith, both dated May 6, 1991, and makes the instant motions.

The Court notes that in its prior opinion, it suggested that the government ascertain whether the Attorney General would consider applying in this case the Department of Justice policy enunciated in 1974, cited with approval in the legislative history, of waiving legal FOIA exemptions as to historic investigatory records over fifteen years old. 762 F. Supp. at 1085. In response, the government submits the statement by FBI Special Agent Smith,*fn1 who states that he has "consulted with personnel in the Office of Information and Privacy, to whom the Attorney General has delegated authority concerning Freedom of Information Act issues pursuant to 28 C.F.R. 0.23a, concerning a waiver of the exemptions . . ." Special Agent Smith states that "Richard L. Huff, Co-Director of the Office of Information and Privacy has advised me that he has determined that there is insufficient historical interest in these records to warrant discretionary disclosure under 28 C.F.R. 50.8." Second Declaration of Joseph P. Smith ("Second Smith Decl."), May 6, 1991, ¶ 3.

28 C.F.R. 50.8, promulgated in 1984, represents a slight change of the 1974 policy of the Department of Justice. It provides as follows:

  (a) The Department of Justice recognizes that
  portions of certain investigatory files compiled
  by the Department for law enforcement purposes,
  although of significant historical interest, are
  nevertheless exempt from mandatory disclosure
  under the Freedom of Information Act, 5 U.S.C. § 552,
  as amended. In responding to requests
  pursuant to that Act, it is the general policy of
  the Department that such files that are more than
  fifteen years old and that are no longer
  substantially related to current law enforcement
  activities will be processed for disclosure
  subject to deletions to the minimum extent
  necessary to protect law enforcement efficiency,
  personal privacy, or other legitimate interests
  that would be implicated by the disclosure of such

28 C.F.R. 50.8.*fn2 28 C.F.R. 50.8 states that, with respect to investigatory files over fifteen years old and no longer substantially related to current law enforcement activities, the general policy of the Department is that they "will be processed for disclosure subject to deletions to the minimum extent necessary to protect law enforcement efficiency, personal privacy, or other legitimate interests that would be implicated" by disclosure. The records in the files received here are well over 15 years old and not claimed to be substantially related to current law enforcement activities. The policy as enunciated is not stated to be conditional on the making of a prior determination that the records are of "sufficient" historical interest. Indeed, not only is the finding of "insufficient historical interest" not a ground for refusing to apply the stated governmental policy, it is impossible to reconcile with this Court's ruling in December, 1990:

  The Court recognizes, in addition, that twenty-two
  years have elapsed since the conviction of
  plaintiff for the crime for which he is currently
  in prison; that the FBI internal document cited by
  the Court in its Opinion of October 24, 1989
  describes non-investigative techniques involving
  prominent black nationalist figures in the 1960's
  which are contrary to our constitutional heritage;
  that plaintiff was a prominent black nationalist
  figure in those years; and that among
  African-American citizens in particular, as well
  as others, there is a strong public interest in
  determining whether any such non-investigative
  techniques were utilized in connection with the
  prosecution of plaintiff.

Ferguson v. FBI, 752 F. Supp. 634, 637 (S.D.N.Y. 1990). The compelling public interest in governmental accountability and the urgent need for public confidence in the justice of criminal convictions and the fairness of the judicial system (all at issue here), particularly among African-American citizens, are beyond dispute and would be well served by as full a release as possible of the records compiled on Ferguson. The "significant historical interest" of these documents is evident in the many works of a historical nature which have been published on the subject of the FBI's role in American history and politics of the latter part of this century,*fn3 especially the FBI's response to political dissent, and in the voluminous Final Report of the Senate's Select Committee to Study Governmental Operations With Respect to Intelligence Activities, Senate Report No. 94-755, 94th Cong., 2d Sess. (1976) (the "Church Committee Report"), cited in Lamont v. Dep't of Justice, 475 F. Supp. 761, 765 n. 5 (S.D.N.Y. 1979). That Ferguson, a man in his seventies, is still alive and seeks these documents in order collaterally to attack his conviction of criminal charges does not lessen their historical significance, just as his sole personal need for disclosure may not be relevant to whether or not there is a public interest in disclosure. Cf. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 1480-81, 103 L.Ed.2d 774 (1989); United States Dep't of Justice v. Julian, 486 U.S. 1, 14, 108 S.Ct. 1606, 1614, 100 L.Ed.2d 1 (1988); Dep't of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).

The United States Attorney is ordered to determine from the Assistant Attorney General in charge of the Office of Legal Policy, or from the acting Attorney General, whether the Attorney General will exercise his discretion to waive, in whole or in part, application of the exemptions to the documents here at issue, in view of their age, their lack of relationship to current law enforcement activities, and the Court's earlier findings that they are of substantial public interest.

In connection with this determination, the Court brings to the government's attention the decisions of the Appellate Division, Second Department, which upheld plaintiff's 1968 conviction by a panel divided 3 to 2 and the decision of the New York Court of Appeals which upheld plaintiff's conviction in a 4 to 3 decision. The government's attention is called also to:

(1) the following portion of the Appellate Division's dissenting opinion:

  Later that day proof was adduced, over defense
  counsel's objection, that a prior list of people
  to be assassinated by RAM included Senator Robert
  Kennedy. . . . In our opinion it was seriously
  prejudicial error not to grant a mistrial and not
  to adjourn this trial until the fall. The shocking
  emotional impact of Senator Kennedy's
  assassination, the dramatic funeral service and
  the public mourning for his tragic end — all
  occurring while defendants were on trial for
  conspiring to assassinate two other prominent
  public figures — inevitably must have prejudiced
  the jurors against these defendants, particularly
  since Senator Kennedy himself was one of those
  originally marked for assassination by them. . . .

People v. Ferguson, 32 A.D.2d 936, 938-39, 302 N.Y.S.2d 950, 953-54 (N.Y.A.D.2d Dep't 1969) (Benjamin and Martuscello, ...

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